FIRE Letter to Ball State University President Jo Ann M. Gora

President Jo Ann M. Gora
Ball State University
Office of the President
Administration Building, Room 101
Muncie, Indiana 47306

Sent via U.S. Mail and Facsimile (765-285-1461)

Dear President Gora:

As you can see from the list of our Directors and Board of Advisors, the Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.

FIRE is concerned about the threat to free speech posed by Ball State University’s demand that Professor Dom Caristi remove a flag hung inside his office window, citing an inapplicable policy. This misguided and arbitrary censorship of Caristi’s expression betrays Ball State’s moral and legal obligations under the First Amendment. FIRE asks that the university promptly rectify its error.

This is our understanding of the facts. Please inform us if you believe we are in error.

Beginning in late 2008 or early 2009, Caristi hung a Greek flag in the window of his office in the Letterman building to mark his selection as a Fulbright scholar to Greece. (A picture of this flag hanging in his window is enclosed.) In early 2010, Caristi replaced the Greek flag with an Italian flag to honor his heritage. Taken together, a flag hung in his window for roughly four years without any complaint from university officials.

According to Caristi, however, on February 11, 2013, Associate Vice President of Facilities Kevin Kenyon called Caristi and asked him to remove the flag. Caristi complied with Kenyon’s request, but asked Kenyon to clarify what policy required the flag’s removal. Kenyon informed Caristi that he was not aware of the specific policy and referred him to Leisa I. Julian, Associate Vice President for Business & Auxiliary Services at Ball State, for clarification.

Later on February 11, Caristi emailed Julian and asked for an explanation of Ball State’s posting policies. In her response, Julian cited Ball State’s Policy on the Use of University Property for Expressive Activities as the guiding document in Caristi’s case, replying in part:

In the Policy on the Use of University Property for Expressive Activities, the University recognizes the importance of free speech, but does regulate the time, place and manner of individual expression in a content neutral and viewpoint neutral fashion. The display of a flag in a window would fall within rules set forth in the section on signs, which only permits such a display in a designated area outdoors for a period of up to 10 calendar days. The intent here is to ensure that expressions are conducted in an orderly manner that respects the rights of others in the campus community. We can’t pick and choose which signs to allow people to display as an individual expression, rather we can only regulate the time, place and manner of a display as I mention above, and the university has done that in a very clear manner. [Emphasis added.]

The Policy on the Use of University Property for Expressive Activities section regarding “Temporary Structures and Signs” specifically states that “[s]tructures and signs are permitted for a period of up to ten (10) calendar days, which includes the time used to set up and tear down the structure or sign.” The policy specifically applies to “temporary structures and signs out-of-doors in a designated area,” neither of which describes Caristi’s flag, which was hung indoors in his office.

After reviewing the policies, Caristi followed up once more with Julian on February 12, 2013, advancing a number of potential scenarios to better understand the application of Ball State policy and stress its deficiencies.

If the reason for asking me to move the flag is for campus aesthetics, it must have something to do with the size. If my 3′ X 5′ flag is deleterious, what size would a flag have to be to make it acceptable? … If you believe that flags fall under the restriction on signs, does that mean all two dimensional items fit this definition?

Julian declined to further address Caristi’s concerns via email. On February 28, Julian met with Caristi and Kenyon to discuss the policies. At this meeting, according to Caristi, Julian argued that the university had provided sufficient general guidelines for posting and had acted within its rights in asking him to remove the flag. Caristi attempted to point out the deficiencies in Ball State’s policies, but Julian and Kenyon reportedly dismissed his concerns.

Ball State’s order that Caristi remove his flag, and its baffling policy justification for issuing the order, violate Caristi’s free speech rights.

As an initial matter, it is settled law that the First Amendment is fully binding on public universities like Ball State. See Widmar v. Vincent, 454 U.S. 263, 268–69 (1981) (“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”); Healy v. James, 408 U.S. 169, 180 (1972) (internal citation omitted) (“[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'”). Further, though universities may establish reasonable “time, place and manner” restrictions on certain campus expression, such restrictions must be content- and viewpoint-neutral, must be “narrowly tailored” to “serve a significant governmental interest,” and must “leave open ample alternative channels for communication.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted).

As is clear from a simple reading of the policy, Ball State’s Policy on the Use of University Property for Expressive Activities is inapplicable, as it explicitly applies only to “temporary structures and signs out-of-doors in a designated area,” and makes no mention at all of indoor expression in personal offices. Indeed, Julian’s February 11 email to Caristi openly conflates these two venues for expression, claiming that the “display of a flag in a window” is somehow bound by a policy that explicitly applies only to “designated area[s] outdoors.”

Further, Caristi has provided evidence demonstrating that Ball State is at best being inconsistent in its already improper application of its expressive activities policy, and at worst subjecting him to an unconstitutional double standard. Several photos taken by Caristi (enclosed) show various departmental and office windows displaying stickers, signs, and posters of varying sizes—including some posters covering windows in their entirety. Several of these decorations, Caristi reports, have been in place for at least the past few weeks, if not much longer. That such decorations are apparently widespread at Ball State suggests that the university does not consider the removal of decorations such as Caristi’s flag to be a significant governmental interest. Additionally, arbitrarily censoring Caristi’s flag while leaving other, similar expression posted fails to adhere to content- and viewpoint-neutral standards for enforcing regulations on expression.

Ball State has to date not cited any specifically applicable policy in ordering Caristi to remove the flag from his office window. This fact, combined with the fact that Caristi had hung flags in his windows without incident for roughly four years, strongly suggests that at Ball State, faculty reasonably may expect to display signs, flags, and other objects of personal expression in their office windows. FIRE additionally reminds Ball State that universities have often permitted, if not encouraged, just this kind of expression by faculty and students as a sign of their commitment to maintaining a true “marketplace of ideas” on campus.

FIRE imagines that many Ball State faculty members and students will be shocked to learn that the university considers expression in dormitory and office windows to fall within the domain of a policy governing temporary outdoor structures and signs. If Ball State is willing to expand its policies so far beyond their written scopes, how are students and faculty ever to know the kinds of speech and expression in which they may or may not engage? This vagueness raises significant First Amendment concerns. As the Supreme Court has held, laws must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972).

Ball State University is flouting First Amendment principles and basic notions of fairness by using inapplicable policies to censor protected expression. FIRE asks that Ball State University clarify its position on window postings in light of this gulf between its expressive activities policy and how it has been enforced against Caristi. In order to fulfill its constitutional obligations as a public university, we ask that Ball State allow Caristi to post materials in his window or revise its policies to govern such expression, and ensure that any such policies are enforced as written, and in a narrow, content- and viewpoint-neutral fashion. We are fully committed to ensuring a just outcome in this case, and hope Ball State will utilize this opportunity to reaffirm its commitment to free speech.

We appreciate your attention to this important issue, and request a response by May 20, 2013.